Under very different circumstances, the European Court of Human Rights 2013 verdict — that whole-life sentences without review and the prospect of release amounted to cruel and degrading punishment — might have been cited enthusiastically in support of the Tamil Nadu government’s bid to release the seven convicts in the Rajiv Gandhi assassination case. But it is hard to attribute noble motives of respect for human rights standards in a case where the remission of a life sentence was announced within hours of the commutation of the death sentence against three of them. On the contrary, such a hurried move raises a legitimate concern that the potential implications of the step for other cases may not have been factored into this politically calculated decision.
None of the parties that initiated or endorsed the move to secure the release of the seven convicts has categorically come out on the larger controversy over the abolition of capital punishment in India. At the very least, such an intervention in that more fundamental debate in all these 16 years might have pushed the country towards the establishment of a moratorium on executions. That would have earned a reprieve for scores of convicts who languish in jails around the country and not just these seven who have been incarcerated for 23 long years and, three of them spending 16 years on death row. But a reference to respect for the sentiments of the Tamils and the views of political leaders is all that is contained in the 2011 Tamil Nadu Assembly resolution seeking the commutation of the death sentences against Murugan, Santhan and Perarivalan.
Marginalised issue The larger question of the resort to capital punishment is but a part of the continuing saga of competitive (and at times communal) politics that vitiates the debate over resolving the vexed issue of extraordinary delays in the disposal of mercy petitions. Unsurprisingly, but ironically, the question of the abolition of capital punishment from the statute has remained at best marginal, even as the appeal from various political parties for clemency for the death row population has invoked principles of humane and humanitarian law.
To be sure, selective appeals for the commutation of death sentences do bring reprieve for individual convicts. But when orchestrated with an eye on partisan political ends, questions of a fundamental nature, namely the arbitrariness and the retributive character of this barbaric punishment are seldom addressed. Similarly, the inconsistency between the state’s power to take an individual’s life — a defining aspect of capital punishment — and the inviolability of the constitutionally-ordained right of every person to his life, are entirely irrelevant to pleas from political parties to secure reprieve for particular convicts. In contrast are the clemency petitions pursued by civil rights organisations such as the People’s Union for Civil Liberties. Pleas from a human rights standpoint typically foreground the extenuating circumstances of the convict, an area the Supreme Court has elaborated and steadily expanded over the decades, besides invoking the broader objectives of criminal jurisprudence mentioned above.
Last year’s 16 to 1 ruling of the Strasbourg court returned to the spotlight last week when the U.K. Court of Appeals upheld whole-life sentences. The details of that decision need not detain us here. Of relevance to the current debate in India is the European court’s emphasis that the possibility of a review of a life sentence did not imply the prospect of imminent release. Whether or not they should be released would depend on whether there were still legitimate penological grounds for their continued detention and whether they should continue to be detained on grounds of dangerousness.
Given that many terrorism-related offences in India, often high-profile cases, attract the ultimate punishment, the field is wide open for competitive pressures and populist posturing in the various stages leading upto the pronouncement of a verdict of guilt. The abolition of the death penalty by law may contribute substantially to rid the domain of criminal justice administration of such extrajudicial influences. Only thus could the focus shift onto the real issues of respect for the rights of detainees, securing time-bound convictions and delivering speedy justice.
garimella.subramaniam@thehindu.co.in
